Your Supreme Court Monday: Texas, Obama and immigration

Gov. Greg Abbott, in his waning days as Texas attorney general, sued the Obama administration in November 2014 to block its effort to shield some 5 million undocumented immigrants from deportation. The U.S. Supreme Court hears arguments in the case Monday morning. (JAY JANNER / 2014 AMERICAN-STATESMAN)

This morning, the U.S. Supreme Court will hear arguments in United States v. Texas, the immigration case that began in November 2014 when President Barack Obama protected from deportation as many as 5 million immigrants in the country illegally, including the undocumented parents of American citizens or permanent residents. Then-Gov.-elect Greg Abbott, in his waning days as Texas attorney general, sued the federal government to keep Obama’s policy from taking effect.

Twenty-five states joined Texas in opposing the president, and over the next several months, a U.S. district judge in Brownsville and the 5th Circuit Court of Appeals in New Orleans blocked Obama’s policy from taking effect. So the Obama administration asked the Supreme Court to weigh in, and in January the court agreed to do so.

Standing: Before the court’s justices can consider any larger, constitutional question they must answer whether Texas and the other 25 states have “standing” to sue the federal government. Simply disliking a federal program does not give states the right to challenge it in court. Direct harm must be suffered to seek legal relief. Texas argues that costs associated with issuing driver’s licenses to a group of undocumented immigrants granted temporary legal status would directly harm it.

Conservatives usually view standing restrictively. The case could end here but no one expects that to happen.

Procedural: Another question involves whether the Obama administration failed to follow the Administrative Procedures Act by not giving the public sufficient notice of its immigration change along with the opportunity to comment on it. This technical, procedural detail is frequently overlooked in most discussions of the case, but it offers the justices a path toward a narrow decision.

Executive authority: The big question in United States v. Texas is whether the president’s actions violate the Constitution’s requirement that he “take care that the laws be faithfully executed.”

Only Congress can make law, but the president has “prosecutorial discretion” when it comes to enforcing the laws — a view the Supreme Court and lower federal courts historically have supported. The immigrants in question in U.S. v. Texas remain undocumented and subject to deportation; in simple terms, the Obama administration wants to defer action against them to focus on immigrants who pose a threat. Texas accepts that the administration has discretion. The state argues, however, that the administration should practice its discretion case by case rather than by issuing a sweeping executive order.

Four years ago, in Arizona v. United States, the Supreme Court essentially confirmed the argument the Obama administration is making in today’s Texas case. “A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all,” Justice Anthony Kennedy wrote for the 5-3 majority. “Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime.”

A decision in U.S. v. Texas is expected to arrive in June, a few weeks before Republicans and Democrats hold their nominating conventions in mid- and late July. A 4-4 tie would let stand the lower court rulings and would block Obama’s programs from taking effect.

Even if the Supreme Court rules in Obama’s favor, his administration will have less than seven months to implement its policy before the next president assumes office. So Obama’s policy lives or dies not only with the court, but also with the next president.

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